Criminalizing Health-Related Behaviors Dangerous to Others? Disease Transmission, Transmission-Facilitation, and the Importance of Trust

Francis, Leslie P.; Francis, John G.

doi:10.1007/s11572-011-9136-7

Cited by 8 publications

(11 citation statements)

References 21 publications

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“…In such cases, HIV is the weaponjust as a knife or another infectious agent might be. Such cases, as we have previously argued (Francis and Francis, 2012), can continue to be prosecuted under reckless endangerment statutes. Our only point here is that the new technologies and available treatment for HIV should further efforts to encourage their use, and not be the impetus for the increasing criminalisation of transmission.…”

Section: Treatment As Prevention Blame and Criminalisationmentioning

confidence: 84%

“…This image is distinguished from circumstances in which both partners are engaging in behaviour that they know to be risky, such as frequent one-night-stands. Some HIV-specific statutes in the US have been constructed to make disclosure of HIV status a defence to the offence of reckless transmission, on the theory that the partner's decision to engage in sex represents informed consent (Francis and Francis, 2012). The contrast between the innocent and unwitting partner, and the partner who knowingly undertakes risky sex, seems only to be heightened by the availability of the OraQuick at-home test.…”

Section: Treatment As Prevention Blame and Criminalisationmentioning

confidence: 99%

“…At present, about half of the US states have such ‘knowing exposure’ statutes. A few states have adopted statutes that enhance penalties for those engaged in behaviour that facilitates transmission, such as procuring a prostitute who is known to be HIV + , but in the main these statutes focus on individual behaviour that is known or should be known to put others at risk (Francis and Francis, 2012).…”

Section: Trends To Criminalising Hiv Transmissionmentioning

confidence: 99%

“…In an earlier paper, we argued that if any criminalisation of HIV transmission is justifiable, it should be directed at transmission facilitation rather than at the individuals who are at risk to transmit (Francis and Francis, 2012). Our central point was that the law has been misguided in focusing on punishment of the diseased individual as wrongful transmitter.…”

Section: Criminalisation and Incentives To Testmentioning

confidence: 99%

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HIV treatment as prevention: not an argument for continuing criminalisation of HIV transmission

Francis

2013

International Journal of Law in Context

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HIV prevention and treatment are undergoing impressive technological and practice changes. In-home rapid testing, prophylaxis before risky sex, and treatment as prevention give cause for remarkable optimism and suggest the possibility of an AIDS-free generation. These changes in HIV prevention and treatment might affect HIV policy in several different directions. One direction would be further entrenchment of the currently prevailing punitive approach. A different direction would be a shift away from use of the criminal law as a method for discouraging risky behaviour and towards a strategy aimed to encourage the use of the new treatment and prevention possibilities. When such abrupt technological changes are accompanied by sharp changes in regulatory regimes, they are identified in the public policy literature as a ‘punctuated equilibrium’. A shift away from criminalisation in HIV policy, if sufficiently widespread and transformative, could reach the level of a punctuated equilibrium. This paper presents a critical assessment of the implications of the changes in available forms of treatment and prevention for the continued appeal of criminalisation as an approach to HIV policy. We conclude that criminalisation is less justifiable in the light of what might be circumstances ripe for a punctuated equilibrium.

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Section: Treatment As Prevention Blame and Criminalisationmentioning

confidence: 84%

Section: Treatment As Prevention Blame and Criminalisationmentioning

confidence: 99%

Section: Trends To Criminalising Hiv Transmissionmentioning

confidence: 99%

Section: Criminalisation and Incentives To Testmentioning

confidence: 99%

See 2 more Smart Citations

HIV treatment as prevention: not an argument for continuing criminalisation of HIV transmission

Francis

2013

International Journal of Law in Context

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“…For both questions, there are examples of crimes in the legal systems. States already act in the sphere of public health and try to prevent diseases using criminal law (for example, intentionally transmitting HIV/AIDS to another is a crime in many countries) (Francis and Francis 2012 ). Setting aside serious objections to the criminalization of that specific behavior (Jürgens et al 2009 ), states already are using criminal law to stop danger in the area of public health.…”

Section: Introductionmentioning

confidence: 99%

Do we need the criminalization of medical fake news?

Mamak

2021

Med Health Care and Philos

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“I don't blame that guy that gave it to me”: Contested discourses of victimisation and culpability in the narratives of heterosexual women infected with HIV

Persson

2013

AIDS Care

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In Australia, most women with HIV were infected through heterosexual sex, echoing global patterns. In media coverage, these women are typically portrayed as having been deceived by men they trusted, or as victims in criminal cases against HIV-positive men from high-prevalence countries. Heterosexuals are clearly overrepresented in such cases, a pattern consistent across high-income countries. It has been suggested that the victim/perpetrator distinction that defines criminal cases and media stories has some resonance among heterosexuals because of gender power dynamics. But less attention has been paid to the ways women themselves make sense of heterosexual transmission of HIV. Drawing on qualitative interviews from two larger studies, this article shows how the victim-culprit binary is challenged by women's own accounts of acquiring HIV. None presented themselves as "victims" in any straightforward sense, or placed the blame squarely on the men, including men who had not disclosed HIV. Instead, their narratives revealed themes of "mutual vulnerability" and far more ambivalent allocations of responsibility. I conclude that the tendency to position women who become infected with HIV in a victim discourse obscures the complex realities of sexual practice and gender that play a part in the epidemic in any cultural context and that have implications for HIV prevention.

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Criminalizing Health-Related Behaviors Dangerous to Others? Disease Transmission, Transmission-Facilitation, and the Importance of Trust

Abstract: Statutes criminalizing behavior that risks transmission of

Cited by 8 publications

References 21 publications

HIV treatment as prevention: not an argument for continuing criminalisation of HIV transmission

HIV treatment as prevention: not an argument for continuing criminalisation of HIV transmission

Do we need the criminalization of medical fake news?

“I don't blame that guy that gave it to me”: Contested discourses of victimisation and culpability in the narratives of heterosexual women infected with HIV

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